Vikas Mishra v. Ravindra Nath Mishra) under Section
Case Details
applicant has challenged the entire proceedings of Complaint Case No. 87900 of 2022 (Vikas Mishra Vs. Ravindra Nath Mishra) under Section 138 of the Negotiable Instruments Act, 1881 pending before the learned Additional Chief Judicial Magistrate, Court No. 9, Lucknow.
3. It has been submitted by learned counsel for applicant that Complaint Case No. 87900 of 2022 (Vikas Mishra Vs. Ravindra Nath Mishra) under Section 138 of the Negotiable Instruments Act, 1881 was filed by opposite party no. 2 alleging therein that the applicant had handed over a cheque no. 472767 dated
12.05.2022 for an amount of Rs.2,00,000/- (Rs. Two Lacs only) and when the same was presented to his banker, the same was returned with the endorsement of insufficient funds and dishonoured. Pursuant to which, a legal notice was given to the applicant. When the applicant did not pay the said amount, the instant complaint case was filed under Section 138 of the Negotiable Instruments Act, 1881. Notices were issued to the applicant by the trial court and lastly non-bailable warrants were issued.
4. It has further been submitted that the applicant had financial relations with the father of complainant, which would be evidence from the first information report lodged by Kaushal Kishore Mishra, father of the complainant. He has lodged an first information report on 12.08.2022 under Sections 420 and 406 IPC against the applicant alleging therein that the applicant had promised to sell certain lands to the complainant for the purpose of which Rs.14,00,000/- (Rs. Fourteen Lacs only) were demanded. The applicant had paid an amount of Rs.7,00,000/- (Rs. Seven Lacs only) and when the land was not sold in favour of the opposite no. 2, the father of complainant had asked for refund of the amount and the applicant is said to have refunded Rs.3,00,000/- (Rs. Three Lacs only) in cash and gave a cheque of Rs.2,00,000/- (Rs. Two Lacs only) in favour of his son i.e., the complainant.
5. Learned counsel for applicant has submitted t hat he does not have any business relation with the complainant and accordingly submits that no legal and enforceable debt is due on the complainant, consequently the complaint case under Section 138 of the Negotiable Instruments Act, 1881 would not be maintainable. No other ground was urged assailing the said proceedings .
6. Learned A.G.A. for the State has opposed the said application and submits that the grounds raised by the applicant before this Court are the defence to the application under Section 138 of the Negotiable Instruments Act, 1881, which ought to have been taken by the applicant before the trial court and these are the question of fact, which can be adjudicated after initial evidence and no finding can be returned on mere assertions of the applicant in this regard. He further submits that once a cheque has been given in favour of the complainant then the presumption under Section 139 of the Negotiable Instruments Act, 1881 would come into play and presumption can adequately be rebutted only by adducing evidence to the satisfaction of the trial court and accordingly, prayed for dismissal of application under Section 482 Cr.P.C.
7. Having heard learned counsel for parties, it is noticed that despite summoning order being issued sometimes in the year 2022, the applicant did not appear in the proceedings but only after issuing non-bailable warrants has filed the instant application under Section 482 Cr.P.C.
8. The only ground raised by the applicant is that as per the first information report lodged by the father of the complainant, it is clear that a cheque of Rs.2,00,000/- (Rs. Two Lacs only) was given by the applicant in favour of the complainant.
9. Once a cheque has been issued then certainly as per provisions of Section 139 of the Negotiable Instruments Act, 1881, the presumption lies in favour of holder of the cheque, the applicant does not dispute the issuance of cheque in favour of the complainant and therefore as per provisions of Section 120 of the Negotiable Instruments Act he is estopped extract from denying the validity of the said instruments. In any view of the matter, whether the said cheque was given in pursuance of debt would be a question of fact which can be adequately demonstrated to the satisfaction of the trial court.
10. The applicant cannot resist the summons of the court by the competent jurisdiction in exercise of powers under Section 138 of the Negotiable Instruments Act, 1881 taking his defence in this regard in proceedings under Section 482 Cr.P.C.. In case any defence is raised it would be adequately considered by the trial court and only after adducing adequate evidence.
11. Accordingly for the aforesaid reasons, this Court does not find any ground for interference nor does find any infirmity for the issuance of summons to the applicant. At this stage issuance of summons, the trial court is duty bound to look into the complaint and all material available on record. The impugned order clearly indicates that the trial court had looked into all the foundation facts resulting in compliance of Section 138 of the Negotiable Instruments Act, 1881.
12. In light of the above, this Court does not find any illegality or infirmity in issuance of summons. Accordingly, the application under Section 528 of the Bhartiya Nagarik Suraksha Sanhita, 2023 being devoid of merits is dismissed. . Order Date :- 30.4.2025 Virendra (Alok Mathur, J.) VIRENDRA KUMAR GUPTA High Court of Judicature at Allahabad, Lucknow Bench
applicant has challenged the entire proceedings of Complaint Case No. 87900 of 2022 (Vikas Mishra Vs. Ravindra Nath Mishra) under Section 138 of the Negotiable Instruments Act, 1881 pending before the learned Additional Chief Judicial Magistrate, Court No. 9, Lucknow.
3. It has been submitted by learned counsel for applicant that Complaint Case No. 87900 of 2022 (Vikas Mishra Vs. Ravindra Nath Mishra) under Section 138 of the Negotiable Instruments Act, 1881 was filed by opposite party no. 2 alleging therein that the applicant had handed over a cheque no. 472767 dated
12.05.2022 for an amount of Rs.2,00,000/- (Rs. Two Lacs only) and when the same was presented to his banker, the same was returned with the endorsement of insufficient funds and dishonoured. Pursuant to which, a legal notice was given to the applicant. When the applicant did not pay the said amount, the instant complaint case was filed under Section 138 of the Negotiable Instruments Act, 1881. Notices were issued to the applicant by the trial court and lastly non-bailable warrants were issued.
4. It has further been submitted that the applicant had financial relations with the father of complainant, which would be evidence from the first information report lodged by Kaushal Kishore Mishra, father of the complainant. He has lodged an first information report on 12.08.2022 under Sections 420 and 406 IPC against the applicant alleging therein that the applicant had promised to sell certain lands to the complainant for the purpose of which Rs.14,00,000/- (Rs. Fourteen Lacs only) were demanded. The applicant had paid an amount of Rs.7,00,000/- (Rs. Seven Lacs only) and when the land was not sold in favour of the opposite no. 2, the father of complainant had asked for refund of the amount and the applicant is said to have refunded Rs.3,00,000/- (Rs. Three Lacs only) in cash and gave a cheque of Rs.2,00,000/- (Rs. Two Lacs only) in favour of his son i.e., the complainant.
5. Learned counsel for applicant has submitted t hat he does not have any business relation with the complainant and accordingly submits that no legal and enforceable debt is due on the complainant, consequently the complaint case under Section 138 of the Negotiable Instruments Act, 1881 would not be maintainable. No other ground was urged assailing the said proceedings .
6. Learned A.G.A. for the State has opposed the said application and submits that the grounds raised by the applicant before this Court are the defence to the application under Section 138 of the Negotiable Instruments Act, 1881, which ought to have been taken by the applicant before the trial court and these are the question of fact, which can be adjudicated after initial evidence and no finding can be returned on mere assertions of the applicant in this regard. He further submits that once a cheque has been given in favour of the complainant then the presumption under Section 139 of the Negotiable Instruments Act, 1881 would come into play and presumption can adequately be rebutted only by adducing evidence to the satisfaction of the trial court and accordingly, prayed for dismissal of application under Section 482 Cr.P.C.
7. Having heard learned counsel for parties, it is noticed that despite summoning order being issued sometimes in the year 2022, the applicant did not appear in the proceedings but only after issuing non-bailable warrants has filed the instant application under Section 482 Cr.P.C.
8. The only ground raised by the applicant is that as per the first information report lodged by the father of the complainant, it is clear that a cheque of Rs.2,00,000/- (Rs. Two Lacs only) was given by the applicant in favour of the complainant.
9. Once a cheque has been issued then certainly as per provisions of Section 139 of the Negotiable Instruments Act, 1881, the presumption lies in favour of holder of the cheque, the applicant does not dispute the issuance of cheque in favour of the complainant and therefore as per provisions of Section 120 of the Negotiable Instruments Act he is estopped extract from denying the validity of the said instruments. In any view of the matter, whether the said cheque was given in pursuance of debt would be a question of fact which can be adequately demonstrated to the satisfaction of the trial court.
10. The applicant cannot resist the summons of the court by the competent jurisdiction in exercise of powers under Section 138 of the Negotiable Instruments Act, 1881 taking his defence in this regard in proceedings under Section 482 Cr.P.C.. In case any defence is raised it would be adequately considered by the trial court and only after adducing adequate evidence.
11. Accordingly for the aforesaid reasons, this Court does not find any ground for interference nor does find any infirmity for the issuance of summons to the applicant. At this stage issuance of summons, the trial court is duty bound to look into the complaint and all material available on record. The impugned order clearly indicates that the trial court had looked into all the foundation facts resulting in compliance of Section 138 of the Negotiable Instruments Act, 1881.
12. In light of the above, this Court does not find any illegality or infirmity in issuance of summons. Accordingly, the application under Section 528 of the Bhartiya Nagarik Suraksha Sanhita, 2023 being devoid of merits is dismissed. . Order Date :- 30.4.2025 Virendra (Alok Mathur, J.) VIRENDRA KUMAR GUPTA High Court of Judicature at Allahabad, Lucknow Bench